Monday, February 1, 2010

The Civil Case Final Pretrial

By John DiMotto
During the first appearance before a judge in a civil case, the judge puts in place a scheduling order that governs how the case will proceed. Numerous deadlines are set to make sure the case stays on track for a trial unless the attorneys are able to settle the case short of trial. (Most cases settle because the lawyers and the parties want to control the outcome of the case rather than have the case decided by a jury or a judge.) One of the deadlines is setting the case for a final pretrial conference.
The final pretrial is a meeting between the judge and the lawyers where the judge is given an update as to the progress of the case and whether it looks like it will be settled or will go to trial. The judge inquires as to the outcome of mediation which is ordered in all cases. The value of mediation, if it does not settle the case, is that it usually refines what issue/s are in play and helps the lawyers focus on what is really important. Sometimes the lawyers will ask the judge for his/her advice or thoughts which the lawyers will factor into future discussions while the case awaits the trial.
At the final pretrial, the judge will usually set two dates. A date to resolve Motions in Limine and a date for either a court trial or a jury trial. There is usually between 90 and 180 days between the final pretrial and the trial. During this time the lawyers continue to work on the case and attempt settlement. A majority of the cases do settle between the final pretrial and the trial.
The value of the final pretrial is that the judge can weigh in on the progress of the case and make final decisions on juror notetaking, juror questions, peremptory challenges, etc so that when the day for the trial arises, the case will go forward without further delay.

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